Cleaborn v. Gentry

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

TREENA CLEABORN, )

)

Plaintiff, )

) Case No. 2:18-cv-2603-JPM-dkv

v. )

)

ANNIECE GENTRY AND SHELBY )

COUNTY SCHOOLS et al., )

)

Defendants.

ORDER OVERRULING OBJECTIONS TO ECF NOS. 42, 72, AND 73; GRANTING

DEFENDANTS’ PARTIAL MOTION TO DISMISS; DENYING MOTION FOR

PRELIMINARY INJUNCTION

Before the Court are the following motions or objections to the Magistrate Judge’s

Reports and Recommendations filed by Plaintiff: the January 24, 2019 Objections to the Report

and Recommendations in ECF No. 42 (ECF No. 49), the February 28, 2019 Motion for an

Injunction for Immediate Medical Treatment and Therapy (ECF No. 63), the April 10, 2019

appeal of the Magistrate Judge’s decision in ECF No. 73 (ECF No. 78), and the April 11, 2019

appeal of the Magistrate Judge’s decision in ECF No. 72. (ECF No. 76.)

Legal Standard for Objections to Reports and Recommendations

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d

380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.2004)). Pro se

litigants, however, are not exempt from the requirements of the Federal Rules of Civil

Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

“Within 14 days after being served with a copy of the recommended disposition, a party

may serve and file specific written objections to the proposed findings and recommendations.”

Fed. R. Civ. P. 72(b)(2). “When no timely objection is filed, the court need only satisfy itself

that there is no clear error on the face of the record in order to accept the recommendation.”

Fed. R. Civ. P. 72(b) advisory committee note.

When a timely objection has been filed, “[t]he district judge must determine de novo

any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.

P. 72(b)(3). The portions of a magistrate judge’s recommendation as to which no specific

objections were filed are reviewed for clear error. See Fed. R. Civ. P. 72(b) advisory committee

notes; Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (noting

that when a party makes a general objection, “[t]he district court’s attention is not focused on

any specific issues for review, thereby making the initial reference to the magistrate useless.”).

“A general objection to the entirety of the magistrate’s report has the same effects as would a

failure to object.” Howard, 932 F.2d at 509. Moreover, the “failure to properly file objections

constitutes a waiver of appeal.” See Howard, 932 F.2d at 508 (citing United States v. Walters,

638 F.2d 947, 950 (6th Cir. 1981)). This is the standard the Court is required to use for

objections to a report and recommendations on a motion to dismiss.

Analysis of Objections to ECF No. 42, Order Recommending Granting Defendants’

Motion to Dismiss

Defendants filed a Partial Motion to Dismiss on October 10, 2018. (ECF No. 14.) The

Magistrate Judge provided her Report and Recommendations on the Defendants’ Partial Motion

to Dismiss on January 2, 2019. (ECF No. 42.) Plaintiff filed objections to the Report and

Recommendations on January 24, 2019. (ECF No. 49.) For the below reasons Plaintiff’s

objections are OVERRULED and the Court ADOPTS the Magistrate Judge’s Report and

Recommendation in full.

Fed. R. Civ. P. 12(b)(6) allows dismissal of a complaint that “fail[s] to state a claim

upon which relief can be granted.” As such, a Rule 12(b)(6) motion permits the “defendant to

test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged

in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama

v. Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss only tests whether

the plaintiff has pleaded a cognizable claim and allows the court to dismiss meritless cases

which would waste judicial resources and result in unnecessary discovery. Brown v. City of

Memphis, 440 F. Supp. 2d 868, 872 (W.D. Tenn. 2006).

When evaluating a motion to dismiss for failure to state a claim, the Court must

determine whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). If a court decides in light of its judicial

experience and common sense, that the claim is not plausible, the case may be dismissed at the

pleading stage. Iqbal, 556 U.S. at 679. “[A] formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. The “[f]actual allegations must be enough to

raise a right to relief above [a] speculative level.” Ass'n of Cleveland Fire Fighters v. City of

Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555). A claim is

plausible on its face if “the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). A complaint need not contain detailed factual

allegations. However, a plaintiff without facts who is “armed with nothing more than

conclusions” cannot “unlock the doors of discovery.” Iqbal, 556 U.S. at 678-79; Green v. Mut.

of Omaha Ins. Co., No. 10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011), aff’d 481

F. App’x 252 (6th Cir. 2012).

“In evaluating a motion to dismiss, we may consider the complaint and any exhibits

attached thereto, public records, items appearing in the record of the case and exhibits attached

to defendant’s motion to dismiss so long as they are referred to in the complaint and are central

to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016) (internal

quotes omitted).

Plaintiff repeatedly claims that the Magistrate Judge “missed the point” about

underlying evidence. (See ECF No. 49 at PageID 348.) Plaintiff does not challenge, however,

the actual factual conclusions recommended by the Magistrate Judge, but rather their

interpretations. The Court has reviewed the proposed factual findings and compared them to

Plaintiff’s complaint. Upon de novo review the Court does not see any basis to change the

proposed findings of fact.

Plaintiff objects to the Magistrate Judge’s recommendation that the claims under the

Racketeer Influenced and Corrupt Organizations Act (“RICO”) must be dismissed because the

Board of Education is a municipal entity that cannot be liable under RICO. (ECF No. 49-1 at

PageID 355.) A school board is a municipal entity that cannot be held liable under RICO. See

Call v. Watts, 1998 WL 165131, at * 2 (6th Cir. Apr. 2, 1998). This objection is overruled.

Plaintiff makes no other specific objections to the Magistrate Judge’s legal recommendations.

See Fed. R. Civ. P. 72(b) advisory committee notes; Howard v. Sec’y of Health and Human

Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Upon de novo review of Plaintiff’s factual and legal objections and clear error review

of the remainder of the report, the Court sees no reason to upset the Magistrate Judge’s Report

and Recommendations. All of Plaintiff’s objections in ECF No. 49-1 are OVERRULED and

the Court ADOPTS the Magistrate Judge’s Report and Recommendations (ECF No. 42)

regarding Defendants’ Partial Motion to Dismiss. (ECF No. 14.) Defendants’ Partial Motion

to Dismiss (ECF No. 14) is GRANTED.

Plaintiff’s Motion for an Injunction and Immediate Medical Treatment

On February 28, 2019 Plaintiff filed a Motion to Judge McCalla Pursuant to Rule 65 for

an Injunction for Immediate Medical Treatment and Therapy. (ECF No. 63.) Defendants filed

a response on March 14, 2019. (ECF No. 70.) Plaintiff “request[s] the Court to order Risk

Management of Shelby County Schools to immediately grant Plaintiff medical attention to see

doctors and receive therapy for her [on the job injury].” (ECF No. 63 at PageID 509.) The

Court treats Plaintiff’s motion as one for a preliminary injunction under Rule 65.

Legal Standard for a Preliminary Injunction

An application for a preliminary injunction is subject to a four-factor analysis. NE. Ohio

Coal. for Homeless, 467 F.3d 999, 1009 (6th Cir. 2006) (applying the four-factor analysis to a

temporary restraining order in an absentee ballot voter identification case). The factors the

Court must consider are: “(1) the likelihood that the movant will succeed on the merits, (2)

whether the movant will suffer irreparable harm without the [injunctive relief], (3) the

probability that granting the [injunction] will cause substantial harm to others[,] and (4) whether

the public interest will be advanced by issuing the [injunction].” Id. at 1009. A preliminary

injunction is an extraordinary remedy which should be granted only if the movant carries his or

her burden of proving that the circumstances clearly demand it. Overstreet v. Lexington-Fayette

Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002).

Analysis of Motion for Preliminary Injunction

The first factor, likelihood of success on the merits, refers to success as to the claim that

would result in the relief requested. Plaintiff’s argues that she would have success based on her

claims under the Tennessee Healthy Workplace Act, T.C.A. § 50-1-501, et seq.; the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1513(e); and 42 U.S.C. § 1983. (ECF

No. 63 at PageID 509.) Those claims were dismissed above based on the Court granting

Defendants’ Partial Motion for Dismissal. Plaintiff has no likelihood of success on the merits

and no basis for the Court to grant her Motion for Preliminary Injunction. Plaintiff’s Motion

for Preliminary Injunction (ECF No. 63) is DENIED.

To the extent that Plaintiff seeks to amend the complaint through ECF No. 63 that

motion is also DENIED. The scheduling order requires that pleadings be amended by January

28, 2019, one month before the present motion was filed. (ECF No. 34.) Plaintiff does not state

any good cause why the scheduling order’s deadlines should not be applied as required under

Fed. R. Civ. P. 16.

Standard of Review for Nondispositive Matters

For Magistrate Judge rulings on nondispositive issues, the district judge in the case

“must consider timely objections and modify or set aside any part of the order that is clearly

erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see Murray v. City of Columbus, Ohio,

534 F. App'x 479, 484 (6th Cir. 2013).

Plaintiff’s Objections to Orders Denying Permission to Amend Complaint

Plaintiff objected to ECF No. 73, the Magistrate Judge’s Order Denying Plaintiff’s

Request for “Permission to Make Defendants’ Attorney a Defendant and Increase Remedy

Amount Due to Evidence of More Retaliation and RICO Violations” on April 10, 2019. (ECF

No. 78.) In the Order, the Magistrate Judge denied Plaintiff’s motion to amend her complaint

as untimely. (ECF No. 73 at PageID 544.) According to the Scheduling Order motions to

amend pleadings were due January 28, 2019. (ECF No. 34.) Plaintiff’s present Motion to

Amend in question was filed on February 12, 2019 after the deadline in the Scheduling Order.

(ECF No. 54.) It is not contrary to law for the Magistrate Judge to enforce the Scheduling Order

and deny the motion. Plaintiff’s objection to ECF No. 73 is OVERRULED.

Plaintiff also objected to ECF No. 72, the Magistrate Judge’s Order Denying Plaintiff’s

“Request to do Second Amendment and Amend Pleadings with Additional Evidence” on April

11, 2019. (ECF No. 76.) Plaintiff’s underlying motion was filed on January 28, 2019. (ECF

No. 50.) The Magistrate Judge denied the motion “because such amendment would be futile”

and not survive a Motion to Dismiss. (ECF No. 72 at PageID 541.) The Magistrate Judge’s

analysis and conclusion in the order were not contrary to law. (See ECF No. 72.) A motion to

amend can be denied if the additional claims would be futile. Midkiff v. Adams Cnty. Reg’l

Water Dist., 409 F.3d 758, 767 (6th Cir. 2005). Plaintiff’s Objection to ECF No. 72 is

OVERRULED.

Conclusion

Plaintiff’s objections to ECF Nos. 72, 73, and 42 are OVERRULED. Defendants’

Partial Motion for Dismissal (ECF No. 14) is GRANTED. Plaintiff’s Motion for Preliminary

Injunction (ECF No. 63) is DENIED.

SO ORDERED, this 28th day of May, 2019.

/s/ Jon P. McCalla

JON P. McCALLA

UNITED STATES DISTRICT JUDGE